Excerpt:civil procedure code (act v of 1908), order vii, rule 11 - partition suit referred to arbitration--decree drawn up in accordance with award--plaintiff, failure of, to deposit stamp duty, effect of--dismissal of suit, legality of. - .....to deposit rs. 10. it may be pointed out here that this rs. 10 was not a court-fee. it was the stamp duty which was payable upon an 'instrument of partition', which includes a decree for partition. for some reason or other, not very clear, this order was not complied with. in the meanwhile another judge had taken the place of the judge who had made the order directing a decree to be drawn up in accordance with the award. this new judge, finding that the order had not been complied with, dismissed the plaintiff's suit. the applicant contends that there was no jurisdiction in the court to dismiss the suit after a decree had been ordered to be drawn up merely by reason of the non-deposit of the stamp duty. we think that this contention has force. possibly if there had been a non-payment.....

Judgment:

1. This application in revision arises under the following circumstances. The plaintiff, who is the applicant here, brought a suit for partition. The parties referred the matter to arbitration and an award was made. No objection having been taken to the award, the Court directed that a decree should be made in the terms of the award. A week after this, the Court directed the plaintiff or his Pleader to deposit Rs. 10. It may be pointed out here that this Rs. 10 was not a Court-fee. It was the stamp duty which was payable upon an 'instrument of partition', which includes a decree for partition. For some reason or other, not very clear, this order was not complied with. In the meanwhile another Judge had taken the place of the Judge who had made the order directing a decree to be drawn up in accordance with the award. This new Judge, finding that the order had not been complied with, dismissed the plaintiff's suit. The applicant contends that there was no jurisdiction in the Court to dismiss the suit after a decree had been ordered to be drawn up merely by reason of the non-deposit of the stamp duty. We think that this contention has force. Possibly if there had been a non-payment of necessary Court-fees, the Court would have had jurisdiction to dismiss the suit, but as already pointed out this was a stamp duty, not a Court-fee. It would be certainly unfortunate if the order of the Court below remains. The parties would be left with a legacy of useless litigation. We allow the application and set aside the order of the Court below dismissing the plaintiff's suit, but on this condition that the applicant here shall deposit the stamp duty of Rs. 10 in the Court below within two months from this date. If he fails to do so, this application in revision will stand dismissed with costs without any further order. If the Rs. 10 is duly deposited, then we direct the parties to pay their own costs of this application. The record may be returned to the Court below as soon as possible.